Untitled Texas Attorney General Opinion ( 1947 )

n-862
PRICE DANIEL
ATTORNEYGENERAL
Hon. Ernest 0. Thcimpsoa, Chalmau
Railroad Commlsslon of Texas
AuntIn, Texas Opinion lo. v-426
Re: Construction o?
11. B. z-98, Chap.
257, Acts of 50th
Leg., Re SelJ-
sloa, 19$'7, as
applied to certain
interstste motor
vehlole carrlerm.
Dear sir:
Your request ior ma OQiUiOl3 la oonnectlon
with H. B. eg8, Chl3pter 2. Act. or the 50th Leglele-
ture, Reguler Se88loa, 1977: prerents five separate
questIons. For alarlty we wfll reatete the questions
separately and lmedlatelj following each restatement
ve will give our amwer.
“1. Does reaiproolty (Vmaer 8. B.
298) depend upon the state of reglrtra-
tlon ot truoke operated br l foreign mo-
tor carrier where the truoka are regls-
tered in a state other tbm the domicile
Of 8UOb fOr*bigTi 8OtOr OWZ~W. Or dOOS it
depeud upon the atate of domicile of the
foreign motor carrier? As an example, a
ioreiga motor carrier whoee domlclle Ia
la the State o? Illtw%a operate8 truoks
Into Texas vbloh are re~etered la Loulirl-
aw, oklahow, n*v Toe, wd otbr rtatw.
There ia DO MOlpro0ltf agreawnt b&VW8
Texas and Illinol8 at the preroat tfw and
there am rwipooal l g r ewmntm b etween Tex -
a #, Lo ul8lma , Bklahcma, ld other etatee.
The QroblW Qmrellted 18 whether or 8ot tb,
rrald forelga motor oarrler domlalled In Il-
llnols 18 required to pay plate and tax fee8
to the Railroad Commlssloa on the truoks
that are registered Ii Loulelana, Oklahoma,
Bon. Ernest 0. Thompson - Page 2 v-426
,.L
or other states which have reciprocal agree-
ments with Texas.”
The 50th Legislature at its Regular Session
In 194 enacted H. Be 298, Chapter 257, emending Chap-
1 Aots of the blat Legislature Regular 3eaalon,
?&31a& subsequently amended (Artlcli 911b V C 3 )
by a&ding a new section to be known as Section’l6ahj ’
vhlch reads as Sollowa:
“18a * Reolproclty. Motor carriers of
property for hire realdinu or domiciled out-
side of the State of Texas, who have author-
ity from the Interstate Cmeroe Commlaalon
to transport property for hire to, from or
between points In Texas, and whose oneratlona
in this State are llmlted to the tranauorta-
tlon of prowrtr for hire la interstate or
Soreign commerce only under such authority,
shall not be reaulred to pay the aveclal Sees
provided for in Sections 7. 17(a). 18 and auk-
paranrephs CR) and (hl of Section 5aCal of
this Act; provided, however, &his exemntlog
Srola the payment OS said Seea shell not aDuly
unless the States In which such foreign motor
carriers reside or are donlolled shell llke-
vise extend to motor carriers residing or daa-
lolled In Texas exemption from the peyment .oS
the same or almllar Sees or expenses In their
zwapeotlve States; such exemptions from the
payment of suoh Seea In Texas shall be effeo-
tlve when the governmental agency or the au-
thorized representative thereof of such Sor-
elgn States having jurladlotlon over the op-
erations of motor carriers Sor hire ahall oer-
tlry In writing to the Railroad Commlaalon OS
Texas that the exemption from the payment of
auoh Sees and expenses by such Texas oarrlera
hs;e;en granted,,and la In full Soree and
provided. Surther. however, that this
exem&on ahall not apnlo to the wsplent OS
Slllna Seea for a``llcatlona Sor oertlSioatea
or Dewits to ovarate in this State.
"Aonrealdent motor CaPPIers coming wlth-
In the exemptions herein provided for shall
not be required to diSQlag upon the vehlolea
operated in this State undel? the provisiona
OS such exemption, identification plates la-
sued by the Railroad Commission of Texaa, and
Hon. Ernest 0. Thompson - Page 3 v-426
the Commlaalon shall not be required to fur-
nish such carriers with such plates." (lQa-
phaala ours)
Under the terms and provisiona of the above
quoted section, the exemption granted to nonresident
motor carriers by wag of reclprooltg from payment of
Railroad Commlaalon plate and tex fees la dependent
upon four distinct things. (1) The person
must be a motor carrier; (2)TE$ :%P carrier must
reside OF be domiciled outside the State of Texas; (3)
His motor carrier operations in Texas must be exclu-
sively in interstate or foreign commerce pursuant to
valid and legal authority issued by the Interstate
Colnnerce Commlsalon; and (4) The state in which the
nonresident motor carrier resides or is domiciled must
grant like exemptions in the pegment of the same or
similar fees to motor carriers rssldlng or domiciled
in Texas. Nothing is contained in said section which
in any manner makes reciprocity dependent upon the
place of registering the nonresident carriers motor
vehicles.
It la to be observed that the important thing
in two of the above requirementa la the place of reald-
a or domicile of the nonresident carrier. The aec-
tlon'-firovldes that the exemption applies to motor car-
riers "residing OP domiciled outside of the State of
Texas" and that Eld exemption shall not apply %mleaa
the states in which such foreign motor carriers reside
OP
-- are domlclledn shall extend like exsmptlona to "mo-
tor oarrlera residing or danlolled In Texas." It there-
Sore becomes necessary to determine the meaning of the
terms %ealde,' "residing," and "domlolle."
The terms "rea%de' and "realdlng" are elastic,
and a# to be Interpreted in the light of the object
and purpose of the statute in vhloh such terms are em-
plo ed. fl oorath v. Stevenson, 77 P. (2d) 608 (Wash.
1936 1.
The Attorney General has previously construed
the tez=m "residing" as used In our reglatratloa of mo-
tor vehicle atatute (Article 6675a-2, V.C.S.) to mean
"Legal~resldent." See 0 Dlnion 8O-102 T, dated July 10,
1939, oiting 54~ Corpus Jurls 70 e Our courts have
reached & similar result in conneotlon with our venue
statutes; Evans v. American Publishinn Co., 13 S. W.
(26) 358 (Conus. AQQ. 1929); Henneasey v. Campbell, 32
Hon. Ernest 0. Tholllpaon - Page 4 v-426
5. W. (26) 390 (Tex. Clv. App. 1930); and have construed
the term 'residea" as used In the statute providing for
the removal of a minor's dlsabllltles to mean "legal
domicile." Gulf. C. & 5. F. RY. Co. v. Lemons, 109 Tex.
244, 206 S.W. 75 (1916).
Domicile la defined by the Amerloan Law Instl-
tute Restatement. ConSllct of Law, 8 9 to mean the place
with which a person has a settled oonnktlon for certain
legal purposes, either beoauae his home la there, OF be-
cause that plaoe la assigned to him by law. It la also
stated In the Restatement on Conflict of Law, I 41, that
a corporation is domiciled in the state where it la ln-
corporated, and oannot acquire a domicile outside that
state.
As applied to an individual, It has been held
that one's domicile Is the place where one has his true,
fixed, permanent home and principal establishment, and
to which, whenever he la absent, he has the intention
of returning. 13 Words ds Phrases 261; State v. DeCasi-
nova's AdmIx., 1 Tex. 401 (lt!4r .
It Is our opinion that the Le(llrlature lntend-
ed thro h Its use of the terms "reside and "realdlng"
to meanueilegal residence," and as so used they are ayn-
onymoua with the term "dixalclle." 28 9. J. S. 7, 0 2,
17 Am. Jur. 596 il 11; Am. Law Inst. Restatement. O -
sllot OS Lava, 4 9. Furthermore by the very natur?oS
the Act, legal realdenoe or domldlle is not coexistent
in the same person In two or more states at the same
tine. Michael v. Michael, 79 9. U. 74 (Tex. Clv. App.
1904).
In answer to your first question you are
therefore advised that reciproolty la dependent upon
whether or not there f8 in existence a reolprooal agree-
ment between Texas and the state of the legal residence
or domicile of the foreign motor carrier rather than
with the state where the vehloloa of the foreign motor
oarrler are registered.
"2 . IS a foreign motor carrier har au-
thority Srom the Interstate Coimserce Commls-
slon to transport property for hire to, from,
and between Texas points only (no other state)
and whose operations in this atate are llmlt-
ed exclusively to the transportation of prop-
erty for hire In Interstate or foreign com8eroe
Hon. Ernest 0. Thompson - Page 5 v-426
only under such authority, and reciprocal
agreement la in effe'ect between Texas and the
state of the domicile of such carrier, la
such oarrler required to have a permit or
certificate issued by the Railroad Conrmla-
slon of Texas for authority to oRerate Its
trucks on the highways In Texas?
H. B. 298, Chapter 257, Acts of the 50th Leg-
islature, Regular Session, 1947, by'lts express wording
deals with the exemption from payment by a foreign mo-
tor carrier of the Sees mentioned and required In Sec-
tions 5a(g) and (h), 7, 17(e), and 18 of Article glib,
V.C.S. Rothlng la contained in said Act amending, or
purporting to amend, Article glib, supra, as to the re-
quirements of or necessity for a oertlflcate of conven-
ience and necessity or permit. On the contrary, the
Act expressly prOvidS8 that the exemption from payment
of plate and special tax Sees shall not apply to the
payment of filing Sees for applloatlona for oertlSl-
oates or permits to operate In this State.
It has previously been decided that a motor
carrier which has been granted authority by the Inter-
state Connnerce Commission to transport goods, wares,
and merohandlse In lnteratate or foreign commerce by
motor vehicle must, prior to commencing operation in
this .State pursuant to said interstate authority, ob-
taln'from the Railroad Casmlaalon of Texas authority
to use our highways In Such interstateoperation, and
to casply with the Insurance requirsmenta and safety
regulations imposed by the Railroad Cosuslsalon under
Article 911b, aupra. Ex Parte Truelock, 140 9. W. (26)
167 (Tex. Crlm. App. l%O), and authorities therein
cited.
Nothing la oontalned in H. B. 298,vhloh in
any manner changes this rule. The foreign motor oar-
rler, regardless of the existence of a reolprooal
agreement between Texas and the state of its domicile,
la still required to obtain from the Railroad Commla-
alon of Texas a certificate OP permit authorlelng the
use of our State highways in interstate or foreign
ooanserce .
Your second question is therefore answered la
the affirmative.
“3 . IS a foreign motor carrier has author-
ity from the Interstate Commerce Commission to
Hon. J&nest 0. Thompson - Page 6 v-426
transport property for hire between points
in Texas and points In other states and a
reciprocity agreement between Texas and the
state of the dom+ile of such foreign car-
rier 1s: in effect, la such carrier required
to have a permit or certificate laawd by
the Railroad Commission of Texas for author-
ity to operate its trucks on the highways of
Texas?"
Our dlacuaalon under Question No. 2 la equal-
ly applicable to Question No. 3. The anaver is the aanm
ln each instance.
Your third question is therefore answered in
the efflmratlve.
“4 . IS a foreign motor carrier has a
certificate or permit from the Railroad Ocm-
mission of Texas and there la a reciprocal
agreement in effect between Texas and the
state of the domicile of such foreign motor
carrier, does the vehicle of such foreign
motor carrier have to be registered (by
equipment report or OtheNlSe) with the
Railroad Commission of Texea as being op-
erated on a reolprooel basis."
Under the rules and regulations of thb Ocanmla-
slon, as well as the general requllrtfillente of Article
glib, supra, a motor carrier la required to register
with the Commission as a part of tha application for a
certificate or permit a written llat and description of
the motor vehicles to be operated by the carrier under
said oertlfloate or permit. The reason for Such re-
quirement Is obvloua, beceuae otherwise it would not be
possible for the Camalaelon to determine whether the
motor vehicles to be used by the carrier meet the re-
quirements of the law and the rules and rugulatlona of
the Commission as to safety ~qulrementa, and Surther,
whether the highways of this State would vlthabnd the
added tnsfilc burden proposed to be placed thereon.
Iiothlng is contslned la H. B. 298, aupra,
which la any manner attempta to dispense with these re-
quirements. These are all matters within the police
power of the State, and our prevfoua dlaouaalon under
Question No. 2 la equally applicable here. See Bx Parta
Truelook, aupra.
Hon. Ernest 0. Thompson - Page 7 V-426
Your fourth question la therefore answered la
the afflnnatlve.
"5 . Where there 18 a reclprooltg agree-
ment between Texas and the state of domicile
of a foreign carrier, Is It necessary that
the truoks of suoh foreign motor carrier op-
erated in Texas have an ldentlflcation canl
Issued by the Railroad Commiaslon displayed
on such motor vehicles?"
Article 169Ob, V.P.C., which Is the penal por
tlon of the.Texas Motor Carrier Law, provides, In part,
as follova:
"(e) The Commiaalon shall prescribe an
ldeatlflcatlon card whloh must be displaYed
wFthFn the aab of eaah motor vehicle, aet-
tlng out the oertlficate or pennit nunber
and-the route or territory over uhlah the
vehicle 1s authorized to operate, giving the
name and address of the owner of said oer- .
tlflcate or permit. It shall be unlawful
for the owner of said certlfioate or permit,
his agent, servant or employee, or any other
person to use or dl8play sald,ldentifiaatlon
card after said certlfloate or DennIt has
been cancelled or disposed of. *The ldenti-
;G;tzmcyd provided for herein y;nbzsln
nd oontain suchlnfonna 1
reaulred bs the Railroad Conrmlssion." (Em-
phasis oura)
House Bill 298, aup~%, In go vay amend8 0~
modifies the requircMBt6 OS the abow ~quoted portion
of Artlole 16gOb, sugrs.
Your fifth question Is therefow answxwd in
the afflrmatlw.
(1) Realproaity F&r_ H, B. 29, chap-
ter 257, Acts of 50th Le Ulature, Regular
Session, 1947 (sectiou 1L of Article 911b,
V,C.S.), Is dependent upon the state of legal
residence or domicile of the foreign motor
carrier rather than the state of reglstrs-
tlon of the motor carrIersI vehicles.
Hon. Ernest 0. Thompson - Page 8 v-426
(2) A foreign motor carrier coming
within the provisions of Section 18a, aupra,
la not relieved of the requirement of ob-
taining a certificate or permit from the
Railroad Commlaalon authorizing the use of
Texas highways In Interstate or foreign com-
merce o
(3) A foreign motor carrier casing
within the provlalona of Section 18a, aupra,
Is still required to register with the Com-
mission all motor vehicles operated by It
In Texas by filing an equlpent report with
the Commission fully describing said motor
vehicles.
(4) Section 18a, aupra, In no way
amends or modlflea the requirements of Ar-
ticle 1690b, V.P.C., requiring ldentlflca-
tioa cards to be displayed on all motor ve-
hicles operated under the jurladlctlon of
the Railroad Commlaalon.
Yours very truly
ATTORNEYGENERAL
OF TEXAS
By - =’ --
Charles D. Matheva
Aaalatant
cDbl:jt
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